Jammu & Kashmir High Court
Union Of India (Uoi) Through Defence ... vs Mst. Freeni Boga on 29 November, 2004
Equivalent citations: 2005(2)JKJ22, 2005 A I H C 1061, (2005) 2 LACC 42
JUDGMENT H. Imtiyaz Hussain, J.
1. This is a Letters Patent Appeal by the Union of India through Defence Estates Officer Srinagar against the judgment-dated 26.11.2001 passed by learned Single Judge in Civil 1st. Appeal No. 103/1998 (Mst. Freene Boga v. Union of India and Anr.).
2. In view of the issues involved and the points raised, it is essential to give the facts in detail:
Land measuring 1809 kanals and 16 marlas situate in village Khunmoh and Zawoora Tehsil Srinagar, was requisitioned under Requisitioning and Acquisitioning of Immovable Property Act 1968 (for short 'the Act') for Army on different dates between 09-10-1950 to 01-04-1961. The Military Estates Officer Kashmir Circle on 13-01-1977 requested the Dy.Commissioner Srinagar (prescribed authority under the Act) to initiate action for acquisition of the said requisitioned land. Before initiating acquisition proceedings under the Act, the prescribed authority made a reference to the Government (Home department) for their consent which was granted on 27-6-1978. After obtaining the No Objection from the Home Department, the prescribed authority issued a notice in form I vide No. 1037-41/LH-452 dated 21.7.1978 calling upon the owners of the land in question to show cause within 15 days as to why the said property should not be acquired as provided under Section 7(1) of the Act. The land owners (Zamindars) did not object to it accordingly the prescribed authority requested the Government to issue necessary notification in this behalf. The Government (Home department) issued notification SRO 148/15.3.1979 (From J) for acquisition of the said land under the Act. The details of the property acquired under the said notification has been given in the Annexure to the said SRO as under: --
K M
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Village Proprietary Land 08 -- 09 Khonmoh Shamlat Land No. 5 568 -- 16 Shamlat No. 4 910 -- 04 (Kahcharai) Sarkar 110 -- 03 Forest Deptt. 186 -- 14 --------- Total 1784 -- 06 --------- Village Proprietary Land 19 -- 14 Zawoora Shamlati No. 5 5 -- 16 --------- Total 25 -- 10 ---------
Some typographical mistakes were detected in the said SRO which necessitated issuance of revised annexures vide SRO 507 dated 13.09.1979.
3. The army authorities asked the prescribed authority for the estimated cost of the land so acquired to enable them to make the payment. The prescribed authority intimated the rate of Rs. 6500/- and Rs. 6000/- per kanal for orchard, maidani and other classis of land respectively on the basis of uniform rate of Rs. 6500 per; kanal awarded for the adjacent land acquired in the same village on 20.12.1978.
4. Out of the total land measuring 1809 K and 16 M acquired we are concerned with only 313 kanals and 4 marlas of land which belonged to respondent Mst. Freeni Boga d/o Seth Soharb Kai Khasroo, as the dispute in the present appeal pertains to her share only. The details of the land possessed by her which was acquired by means of the said proceedings as under:--
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Survey No: Area Village
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2880/2679/2584/Min 122 kanal 06 marlas Khunmoh
3183/2679/2584/Min 077 kanal 09 marlas Khunmoh
3183/2679/2584/Min 011 kanal 03 marlas Khunmoh
2741/2679/Min 025 kanal 00 marlas Khunmoh
3183/2679/2584 028 kanal 11 marlas Khunmoh
2584/Min 026 kanal 11 marlas Khunmoh
2727/2661/2582 022 kanal 04 marlas Khunmoh
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Total 313 kanal 04 marlas
5. Before proceeding further, it is pertinent to note here that the entire land of 313 kanals and 4 marlas was Shamilat Section 5 land recorded in the revenue records.
Like other landowners, Mst. Freeni Boga was also offered a uniform rate of Rs. 6000/- per kanal for the land so acquired. She did not accept the same and her attorney and custodian B.N. Pestonjee vide his application dated 7th August, 1978 addressed to the Dy. Commissioner Srinagar demanded compensation at the rate of Rs. 20,000/- per kanal. Though he expressed no objection to the acquisition of the said land but made it conditional to the payment of compensation at the prevailing rate. He submitted that the land was a fully developed orchard with a large number of almond, apple and other fruit trees and requested the authority to keep in view of the following points while fixing the rate for the land:
(a) the location of the land, i.e. this land is located on the main highway;
(b) recently the Govt. requisitioned some land for Government of India at Panthachowk village on the Khunmoh road but far away from the main road;
(c) there have been no known recent sales of such valuable and so such developed orchard areas of Khunmoh village.
6. It appears that there was no headway in the matter till 1987 when on 12.8.1987 Freeni Boga through her attorney namely Shri Shiv Ji Bhat alias Makhan Lal applied to the prescribed authority for appointment of an Arbitrator in terms of Section 8(I)(b) of the Act. The said attorney informed the prescribed authority that the rate of Rs. 6000 per kanal which had been offered for the land, is too low and not acceptable to the applicant as she is entitled to a compensation at the rate of Rs. 25000 per kanal. He also claimed interest at bank rate and also solatium (Jabirana) at the ratio of 15%.
7. The Government took about 8 years to appoint the Arbitrator in the matter and by means of SRO 156 dated 11.7.1995 Additional District and Sessions Judge Srinagar was appointed as an ex-officio Arbitrator to make an award in respect of the rate of compensation payable in respect of land measuring 313 kanal and 4 marlas comprising Khasra Nos. 2880/2679/ 2584/min, 3138/2679/2584/min, 3183/2679/2584/min, 2741/2679/min, 3183/2679/2584/min, and 2727/2661/2582. The Arbitrator (Addl. District and Sessions Judge Srinagar) after taking on record statement of facts of the parties struck as many as 9 issues in the case which were as under: --
1. Whether the compensation at the rate of Rs. 6000/- was fixed by the prescribed Authority namely Deputy Commissioner, Srinagar as per the prevailing market rate in respect of the land acquired? OP Party Nos. 2 & 3.
2. In case Issue No. 1 is not proved, what was the market rate of land in question at the time of acquisition under RAIP Act. 1968 OP Party No. 1.
3. Whether the lands bearing survey Nos. 2581 and 2582 in village Khonmoh which were adjacent to the land in question were also acquired at the rate of 6000/- per; kanal and compensation thereof was enhanced to Rs. 15,000/- per kanal by the District Judge Srinagar vide his judgment dated 29.6.85 in a reference vide his judgment dated 29.6.85 in a reference under Section 18 of the Land Acquisition Act? O.P. Party No. 1.
4. In case Issue No. 3 is proved in favour of party whether on the same analogy and criteria the claimant was also entitled to receive compensation at the rate of Rs. 15,000/- per Kanal from the date when the land in question was acquired under RAIP Act? OP Party No. 1.
5. Whether the claimant can claim interest at the rate of 10% per; annum on the amount of Rs. 15,000/- per kanal which works out to Rs. 40,500/- per kanal in the year 1995? O.P. Party No.
6. Whether the lands in question were of higher quality in terms of agricultural and commercial value and if so, the claimants is entitled to compensation at even a higher rate than Rs. 15,000/-per kanal Party No. 1.
7. Whether the government has awarded compensation at a higher rate than Rs. 15,000/- per kanal for similar kind of lands situate in the vicinity of land in question and if so, the party No. 1 is entitled to receive compensation at such enhanced rates. O.P. Party No. 1.
8. Whether the party No. 1 is entitled to solatium i.e. jabrana at the rate of 15% for the compulsory acquisition of the land in question? O.P. Party No. 2.
9. To what reliefs are party No. 1 entitled to?
8. After taking the evidence of the parties and considering the matter, the Arbitrator found that the respondent had received just and fair compensation of Rs. 6000/- in respect of land measuring 291 kanals. The Arbitrator however found respondent entitled to compensation at rate of Rs. 15000/- per kanal is respect of land measuring 22 kanals and 4 marlas under Khasra No. 2727/266/2582. The respondent was also found entitled to solatium at the rate of 15% on the aggregate compensation amount and also to interest at the rate of 6% on the enhanced unpaid amount. The Arbitrator also awarded costs of the Arbitration proceedings to the respondents. The Arbitrator gave the following award: --
"For reasons given above, the award is made as under:
i. That the claimant has received just and fair compensation Rs. 6000/- in respect of land measuring 291 kanals comprising Khasra numbers 2880/2679/2584/min, 3183/2679/2584/min, 3183/2679/2584/min, 2741/2679/min, 3183/2679/2584/min, and 2584min situate in village Khonmoh;
ii. That the claimant shall be entitled to receive compensation at the rate of Rs. 15,000/- per kanal in respect of land measuring 22 kanals and 4 marlas under Khasra Nos. 2727/2661/2582 situate in village Khonmoh and the amount already received by her shall be deducted;
iii. That the claimant shall also be entitled to solatium at the rate of 15% on the aggregate compensation amount as covered by item Nos. (i) & (ii);
iv. That the claimant shall also be entitled to interest at the rate of 6% on the enhanced unpaid amount shown at item No. (ii) from the date of this award till its full realization, v. That the claimant shall also be entitled costs of the arbitration proceedings payable by the Union of India."
9. While fixing of compensation of Rs. 15,000/- in respect of 22 kanals and 4 marlas of land, the Arbitrator mainly took support from a decision of District Judge, Srinagar in a reference under Section 18 of the Land Acquisition Act titled Aziz Mir and Ors. v. Collector and Anr. File (reference) No: 3 of 1982-83 decided on 29.6.1985, which related to the land situated adjacent to the land belonging to Mst. Freeni Boga.
10. Not satisfied with this award both the appellant and respondent filed two separate appeals which were heard by learned Single Judge and disposed of by means of a common judgment dated 20.12.2001.
11. CIA No. 103/98 was filed by the Union of India through Defence Estates Officer, while as CIA No. 38/98 was filed by Mst. Freeni Boga.
12. In CIA 38/98 the award was challenged by the respondent on the following grounds: --
(i) That the findings of the arbitrator that the land in question is dissimilar to the land, which is subject matter of reference No. 3 of 1985, is not a correct finding of facts;
(ii) That the award in the matter of determination of compensation proceeds on in correct basis. The arbitrator was required to determine value of the land as on 15.3.1979 and had to assume that the land in question was available for sale as on that date; and was in the same condition when it was requisitioned in the year 1950/51. It is further urged that when the land was requisitioned it was a fruit yielding orchard and the arbitrator had to determine its price, as it would fetch in the open market on 15.3.1979;
(iii) That the land in question and the subject matter of reference No. 3 of 19851 constituted one single integrated plot of land and the arbitrator erred in law in looking for identical survey number in respect of the entire land;
(iv) That the appellant became entitled to interest from 12.8.1987 when she requested the competent authority to refer the dispute, relating to rate of compensation to an arbitrator and that she is entitled to interest at the rate of 20% per annum;
(v) That the finding of the arbitrator in respect of the issues is correct and unsustainable on the basis of the evidence available on record as also in law;
(vi) The appellant has also claimed solatium at the rate of 30%.
13. In CIA 103/1988 the Union of India (Appellant) assailed the award on the following grounds: --
(a) enhancing the compensation at Rs. 15,000/- per kanal in respect of land measuring 22 kanals and 4 marlas under Khasra No. 2727/2861/2582;
(b) entitlement of solatium at 15% on the aggregate compensation;
(c) entitlement to interest at 6%;
(d) entitlement to costs the arbitration proceedings.
14. Learned Single Judge in its elaborate judgment disposed of both the Appeals on 26.11.2001. The learned Single Judge dismissed the appeal filed by the Union of India on the ground that in the facts and circumstances of the case, the Arbitrator was justified in awarding Rs. 15,000/- per kanal for 22 kanals and 4 marlas in respect of land comprising survey No. 2727/2661/2582. In coming to this conclusion the learned Single Judge found that the Arbitrator had rightly applied the judgment passed by the District Judge Srinagar in Aziz Mir's case to the facts of the present case as according to the learned Single Judge a judgment determining market value is admissible in evidence for determining market value of land in question provided the land to which the judgment pertains is in the vicinity of the acquired land even though not inter parties. The Court further found that there was nothing on record to show that the location, shape, potentialities, similarities or tenure of the land in question is materially different from the adjoining land. No evidence on this count was, according to the Ld. Single Judge produced by Union of India, therefore, the court found that judicially determined compensation for the adjoining land can be taken as a safeguard for determining the compensation of the land in question.
15. So far the appeal filed by Mst. Freeni Boga was concerned, the learned Single Judge found merit in the same and came to the conclusion that in the facts and circumstances of the case, the respondent (Mst. Freeni Boga) was entitled to compensation at the rate of Rs. 15,000/- per kanal in respect of entire land measuring 313 kanals and 4 marlas. Learned Single Judge also found respondent entitled to interest at the rate of 6% on the enhanced unpaid amount from the date of taking over of the possession to the date of final recovery. It was observed as under:
"On the facts and circumstances and the reasons recorded above CIA No. 38/98 is dismissed. CIA No. 103 of 1998 is allowed as under:
The appellant is entitled to receive compensation at the rate of Rs. 15,000/- per kanal in respect of land measuring 313 kanals and 4 marlas comprised in survey No. 2582 and 2584 less the amount already received by the appellant. The appellant shall also be entitled to interest at the rate of 6% on the enhanced unpaid amount from the date of taking over of possession to the date of final recovery."
16. It appears that some typographical mistake had crept in the judgment while mentioning CIA Nos. i.e. 38 and 103 of 1998, accordingly the respondents moved and application for clarification of the judgment which was heard and disposed of by the learned Single Judge by means of its order dated 20.12.2001. The learned Single Judge ordered that endorsement 'Civil 1st Appeal No. 103/1998' shall read as 'Civil 1st Appeal No. 38/1998' and endorsement 'CIA No. 38/98 is dismissed' shall read as 'CIA No. 103/98 is dismissed'. The learned Single Judge further directed that the rate of interest of 6% which has been permitted from the date of taking over of possession shall read as payable from 12th August 1987, when the request for appointment of Arbitrator was made. The relevant portion of the said order of the court is as under: --
"At page No. 16 of the judgment in the last two lines of second para, the endorsement 'Civil 1st Appeal No. 103/1998' shall read as 'Civil 1st Appeal No. 38/1998' and on page No. 17 in the operative portion the endorsement 'CIA No. 38/98 is dismissed' shall read as 'CIA No. 103/98 is dismissed."
17. The Appellant felt aggrieved by the judgment of the learned Single Judge dated 26.11.2001, so the present appeal had been filed on various grounds. The main ground taken in the memorandum of Appeal is that the learned Single Judge has while awarding Rs. 16,000/- for the whole area of 313 kanals and 4 marlas assumed the jurisdiction of the trial court which was not permissible under law as the learned judge was required to go to the irregularity or illegality committed by the trial court only and it was not within the powers of the Hon'ble Court to suo moto enhance the award of compensation and upset the finding of the Arbitrator which finding, according to the Appellant, was based on cogent reasons and was supported by material and evidence on record. It is also pleaded that there is admittedly difference in soil conditions in the land acquired as a portion of it was barren, rocky and far away from the main road consisting of slopes of the foothill. It was not therefore proper to apply the same yardstick for the entire piece of land and enhance the award to Rs. 15,000/- for the same.
18. We have heard the learned counsels for the parties and have gone through the record. Mr. A.M. Dar appearing for the Union of India has reiterated the grounds taken in the memorandum of appeal to assail the impugned judgment. In addition he has vehemently argued that the Arbitrator and the Arbitrator and the Ld. Single Judge could not have granted the solatium and interest in favour of the respondent as there was no such provision in the Act. Mr. Dar has further argued that in view of the fact that the land under acquisition was Shamilat land, the respondent was not entitled to the amount as fixed by the Arbitrator or by the Ld. Single Judge. He therefore has challenged the impugned judgment mainly on three grounds i.e.;
(a) the respondent is not entitled to the compensation of Rs. 15,000/- for 291 kanals as ordered by the learned Single Judge.
(b) the respondent is not entitled to solatium and interest as ordered by the Arbitrator and also by the learned Single Judge.
(c) the respondent is not entitled to the compensation for the land acquired as the same falls within Shamilat.
19. The matter relates to the Jammu and Kashmir Requisitioning and Acquisition of Immovable property Act, 1968. In view of the issues raised, it will be relevant here to have a look on various provisions of the Act.
20. The Requisitioning and Acquisition of Immovable Property Act, 1968 was enacted to provide for the requisitioning and acquisition of immovable property for the purposes of the State. It was enacted in the year 1968 and came into force w.e.f. Ist August 1969. The Act consists of two main parts relating to requisitioning and acquisition of immovable property. Requisition of the property can be made by the Government under Section 3 of the Act when it is of the opinion that any such property is needed or likely to be needed for any public purpose. Section 4 gives powers to the competent authority to issue notice in writing to the owner or any other concerned person of the property to surrender or deliver possession thereof to it. The second part, with which we are mainly concerned in the present case, relates to the acquisition of the property. Section 7 of the Act provides that, where any property is subject to requisition, the Government may, if it is of opinion that it is necessary to acquire the property for a public purpose, at any time acquire such property. While acquiring property the Government has to publish a notice in the Government Gazette and once such a notice is duly published, the requisitioned property shall vest absolutely in the Government from the date on which the notice is so published.
21. Sub-section (3) of Section 7 of the Act gives two circumstances under which the property can be acquired i.e.,
(a) where any works have, during the period of requisition, been constructed in or order, the property wholly or partially at the expenses of the Government and the Government decides that the value of, or the right to use, such works should be secured or preserved for the purposes of Government; or
(b) where the cost of restoring the property to its condition at the time of its requisition would, in the determination of the Government be excessive and the owner declines to accept release from requisition of the property without payment of compensation for so restoring the property.
22. Section 8 of the Act provides the principles and methods of determining compensation for the acquired property. It will be relevant to reproduce the section as under: -
"Section 8 (1) Where any property is requisitioned or acquired under this Act, there shall be given compensation which shall be determined in the manner and in accordance with the principles hereinafter set out, that is to say:
(a) where the compensation can be fixed by agreement, it shall be given in accordance with such agreement;
(b) where no such agreement can be reached, the Government shall appoint as arbitrator a person, who is a District Judge or Additional District Judge;
(c) the Government may, in any particular case, nominate a person having expert knowledge as to the nature of the property requisitioned or acquired to assist the arbitrator and where such nomination is made, the person to be compensated may also nominate an assessor for the same purpose;
(d) at the commencement of the proceedings before the arbitrator, the Government and the person to be compensated shall state what in their respective opinion is a fair amount of compensation;
(e) the arbitrator shall after hearing the dispute, make an award determining the amount of compensation which appears to him to be just and specify the person or persons to whom such compensation shall be paid; and in making the award, he shall have regard to the circumstances of each case and the provisions of Sub-section (2) and (3) so far as they are applicable;
(f) where there is any dispute as to the person or persons who are entitled to the compensation, the arbitrator shall decide and dispute and if the arbitrator finds that more persons than one are entitled to compensation, he shall apportion the amount thereof amongst such persons;
(g) nothing in the Jammu and Kashmir Arbitration Act, 2002, shall apply to Arbitration under this section."
23. Mr. Shah, Sr. Advocate would argue that under the Act, the competent authority does not fix the market value of the property but only fixes an amount which it offers to the owner of the property as compensation for the acquired property and if the effected party accepts the amount the compensation for the property can be fixed under Clause (a) Sub-section (3) of Section 8 by agreement of the parties. Where no such agreement is arrived at the Government has to refer the matter to an Arbitrator who may be a District Judge or an Addl. District Judge. The Arbitrator has to fix the just compensation and compensation so fixed by the Arbitrator is the due amount which the Government is required to pay for acquiring the requisitioned property. The procedure, according to the learned Counsel, is entirely different from the one prescribed by the Land Acquisition Act, where the Collector fixes the market rate for the acquired party and on reference, the Court has to judge as to whether the rate so fixed is the proper rate or not.
24. The provisions of Land Acquisition Act are not applicable in respect of an acquisition made under the Requisitioning and Acquisition of Immovable Property Act is now settled by the Apex Court. Earlier in Haji Mohammad Ekrmul Haq v. The State of W.B., AIR 1959 SC 488, the Apex Court took the view that even in the matter of payment of compensation under the 1952 Act, the criteria laid down under the Land Acquisition Act would be applicable, but later in Dayal Singh v. Union of India, AIR 2003 SC 1140, the Court changed this view and held:
"The provisions of the Land Acquisition Act are, ex facie not applicable for determination of compensation under the 1952 Act. The provisions of the Land Acquisition Act and the 1952 Act are, thus, pari materia. Section 23 of the Land Acquisition Act, 1894, on the hand, lays down the factors which are required to be taken into consideration in determining the amount of compensation. The mode and manner in which the compensation payable for acquisition of land under the 1952 Act and Land Acquisition Act, 1894 are, thus, distinct and different. We fail to see as to how the provisions of Section 28A of the Land Acquisition Act can be made applicable in relation to a proceeding under the 1952 Act".
The view taken in Dayal Singhs Case was later reiterated in Union of India v. Hari Krishan Khosla (1993) Supp 2 SCC 149.
25. The criteria provided by the Act in fixing the compensation for the acquired property is different from the one provided by the Land Acquisition Act. It may to some extent appear akin to it, but the procedure and the norms laid down by the Land Acquisition Act would not be applicable in cases under the Act.
26. Under the Act the competent authority has to fix the value of the property and this obviously should be 'just equivalent'. The owner of the property has a choice either to accept the amount fixed by the authority or he may ask the Government to appoint an Arbitrator in the matter. The Arbitrator once appointed by the Government has to hear the parties and make an award determining the amount of compensation which appears to be just. It is also to specify the person or persons to whom the compensation shall be paid. In making the award the Arbitrator shall have regard to the circumstances of each case and to the provisions of Sub-section 2 and 3 of Section 8 reproduced below, so far they are applicable to the facts of the case:
"(2) The compensation for the requisitioning of any property shall consist of: --
(a) recurring payment, in respect of the period of requisition, of a sum equal to the rent which would have been payable for the use and occupation of the property, if it had been taken on lease for that period and,
(b) such sum, or sums, if any, as may be found necessary to compensate the person interested for all or any of the following matters, namely:
(i) pecuniary loss due to requisitioning;
(ii) expenses on account of vacating the requisitioned premises;
(iii) expenses on account of re-occupying the premises upon releases from requisition; and
(iv) damages (other than normal wear and tear) caused to the property during the period of requisition, including the expenses that may have to be incurred for restoring the property to the condition in which it was at the time of requisition.
(3) The compensation payable for the acquisition of any property under Section 7 shall in the absence of an agreement be the price which the requisitioned property would have fetched in open market, if it had remained in the same condition as it was at the time of requisitioning and been sold on the date of acquisition.
27. The emphasis under Section 8 is on 'just compensation' and while arriving at such a conclusion the Arbitrator has to take into consideration the guiding factor as provided by Clause 3 of Section 8 i.e. the compensation payable shall be the price which the requisitioned property would have fetched in open market, if it had remained in the same condition as it was at the time of requisitioning and being sold on the date of acquisition. This provision has obviously been made to safeguard the interests of the owners or the person interested so as to provide compensation to them on the same rates which they would have fetched in open market had their property remained with him in the same condition as it was at the time of its requisitioning.
28. Under the Land Acquisition Act, on the other hand, the court has to take into consideration the market value of the land at the date of publication of the notification under Section 4 of that Act. The measure of market value is what a willing purchaser might at the date of the aforesaid notification pay for the land. The compensation must be determined by reference to the price which a willing vendor might reasonable expect to obtain from a willing vender. The land is not to be valued merely by reference to the use to which it is being put to at the time of acquisition but also by reference to the use to which it may reasonably be put to in the near future.
Supreme Court in Hari Krishan Khosla's case (supra pointed out to some of the glaring dissimilarities between the Act and the Land Acquisition Act. Pointing out to one of the special feature of the Act the Apex Court said:
".. in the case of requisition, one of the important rights in the bundle of rights emanating from ownership, namely, the right to possession and enjoyment has been deprived of, when the property was requisitioned. It is minus that right for which, as stated above, the compensation is provided under Section 8(2), the remaining right come to be acquired".
29. We have reproduced the provisions of the Act and referred to the relevant case law to show that the factors which are relevant in determining the compensation under the Land Acquisition Act may not be relevant while fixing the market value of the property under acquisition under the Act as the mode and manner in which the compensation payable for acquisition of land under the Act and Land Acquisition Act are distinct and different. So both the Tribunal and learned Single Judge erred in applying and relying on the rate fixed by the District Judge in Aziz Mir's case. The District Judge had in that case fixed the rate under the Land Acquisition Act, obviously after taking the criteria laid down by that Act into consideration and the criteria being entirely different, the rate fixed as such could not have been applied to the facts of the case under the Act. The Tribunal should have acted independently of the order of the District Judge and in assessing the compensation should have taken into consideration the evidence led by the parties in the case before it and also the principles provided by Section 8 of the Act.
30. On going through the statement of witnesses produced by the parties in the case we find that there is no sufficient evidence led by the parties on the quantum of compensation on which the Tribunal could have relied in fixing the due compensation. The only evidence we find is that of the attorney of the respondent, who has in his oral statement deposed that the market rate of the land in question was Rs. 20,000/- per kanal but this statement is not corroborated by any other evidence. Perhaps conscious of this fact, Mr. Shah would argue that in such circumstance the safest way was to rely on the finding of the District Judge who at least gave a judicial finding on the market value of the land which finding has remained unchallenged till date. Learned Single Judge too has adopted the same approach when it was observed that a judgment determining the market value is admissible in evidence for determining the market value of the land is question.
31. A judgment determining the market value is relevant for determining the market value under the Act only when it is based on the same principles and has taken into consideration the same factors which are otherwise relevant for fixing the market value in a case under the Act. An ex parte judgment given in a case under the Land Acquisition case was therefore not relevant for the present case.
32. A very significant development, however has taken place in the present appeal. The Appellant has not raised any objection before us to the compensation of Rs. 15,000/- fixed by the Arbitrator. Rather it has been pleaded in the memorandum of appeal, reiterated by the Counsel for the appellant during arguments, that the Arbitrator has reached to the conclusion and awarded Rs. 15,000/- per kanal on proper assessment of the case. In view of the admission of the appellant before us we need not to go to this issue in this appeal and the amount of Rs. 15,000/- will be taken as admitted by the appellant notwithstanding the fact that there was no sufficient evidence on file on this point and that the finding of the District Judge was not applicable in the present case. The only issue which now remains to be decided for us is as to whether the amount of Rs. 15,000/- should have been taken as compensation for 22 kanals only, as fixed by the Arbitrator or for the entire land of 313 kanals and 4 marlas, as done by the learned Single Judge.
33. Learned counsel for the Appellant would argue that since the land under acquisition is not a compact piece of land but is situated at foot hill, a portion of it was earlier an orchard but a major portion of it was banjar (uncultivated) and rocky land. Since the kind of soil, according to the learned counsel, was not the same, amount of Rs. 15,000/- could not have been fixed by the learned Single Judge for entire land under acquisition.
34. We are not impressed by the argument for the reason that while fixing the amount the prescribed authority too has fixed Rs. 6000/- for the entire land and while doing so the authority has not categorized the land in to various kinds of soil, like orchard, banjar and rocky. Rs. 6000/- has been fixed for the entire land measuring 313 kanals and 4 marlas thus taking the whole area as a compact land. Otherwise also there is no evidence on the part of the Appellant on file to show that the land under acquisition in the present case consist of different kinds of soil. Even the revenue record has not been produced nor any revenue official has been examined to show as how much land was cultivable and how much uncultivable. It is also not shown that after requisitioning or acquisition of the land only a portion of it could be put to use due to it being a banjar or rocky land. The nature of land has not therefore prevented the Government to put it to the use for which it has been acquired. In absence of any compelling material it cannot be said that the land under acquisition was not a compact piece of land. We could not find force in the suggestion of the learned counsel, to indulge in a meticulous exercise of classification of the land acquired. When the entire land was acquired in one block for public purpose, classification of the same into different categories, at the time of fixing the compensation does not stand to reason.
35. Under Section 8 (3) of the Act, as reproduced above, the compensation payable shall be the price which the requisitioned property would have fetched in open market, if it had remained in the same condition as it was at the time of requisitioning and been sold on the date of acquisition. While referring to this provision Mr. Shah rightly argued that had the respondent herself sold the land she, like a prudent seller, would have sold the whole land to one purchaser getting a good price for the entire land rather than selling it in parts, so she has to get the same amount for the whole land acquired from her.
36. Under these circumstances we are of the view that the learned Single Judge has rightly fixed the compensation of Rs. 15,000/- per kanal for the entire land of 313 kanal and 4 marlas.
So far the second ground taken by Mr. Dar, regarding payment of interest is concerned, it was frankly conceded by Mr. Shah that under the provisions of the Act the land owner is not entitled to any solatium or interest. In this behalf he referred to Union of India v. Hari Krishan Khosla (supra) where the Apex Court was of the view that the Requisitioning and Acquisition of the Immovable Property Act does not contain provisions for grant of solatium or interest and that 'failure to provide solatium at 15% or interest at 6% under Section 8(3)(a) of the Act does not make it discriminatory'.
Hari Krishan Khosla's case (supra) was followed by the Apex Court in Union of India v. Sher Singh, AIR 1996 SC 3343 and it was held:
"Determination of just compensation is with reference to the value of the land acquired under the Act. Since the payment of solatium and interest is in addition to the compensation determined under the Act, this Court in Hari Krishan Khosla's case (1993 AIR SCW 105) (Supra) had held that the arbitrator is devoid of jurisdiction to award solatium and interest. Under these circumstances, the High Court was not right in upholding payment of solatium and interest."
In view of the law laid down by the Apex Court, we find that the Tribunal and learned Single Judge could not have awarded interest in favour of the respondent. Impugned judgment to that extent, is not sustainable.
37. The objection regarding Shamilat land, raised by the learned counsel for the appellant is also devoid of any merit. Shamilat lands are in a way common land of a village which in fact were the State lands prior to the year 1926. Shamilat and rights in Shamilat were the subject matter of Boon No: 4 announced by the Maharaja of the State at the Raj Tilak Darbar on 25th February 1926. The Boon provided as under:
Boon No: 4 Shamilat "In village where there is at present no land entered as Shamilat and where the common land in the vicinity of the village-site is now entered as Khalsa, this land shall henceforth be shown as Shamilat Deh and the villages concerned shall jointly be awarded the same rights therein which they possess in their individuals holding. Galwand
(a) Bhayachara The land of any landholder in a Bhayachara Estate who dies heirless henceforth become Shamilat Deh and not Galwand.
(b) Non-Bhayachara In villages other than Bhayachara when a landholding possessing proprietary or tenancy rights dies without an heir, under the existing Galwand rules the proprietary or tenancy rights, as the case may be, have hitherto reverted to the State and have been auctioned to the highest bidder irrespective of the villages in which he resides. Henceforth His Highness is pleased to command that in such cases the landholders of the village in which the rights are situated, shall in the first instance alone be allowed to be bid for the rights in question and the rights concerned shall be transferred to the highest bidder provided that such bidder is willing to offer an amount not less than the minimum in advance which shall be fixed in accordance with rules to be notified hereafter. Should no landholder in the village avail himself of this right?, landholders in other villages situated in the same Zail shall then be given an opportunity of bidding.
(c) The share in a joint holding of any landholder who dies heirless, shall be distributed among the surviving share-holders in that holding according to their share."
38. By this boon it was said that the land holders in a particular Mahal would be entitled to have a share in the land declared as Shamilat pro rata their holdings that means they had proprietary rights in shamilat land in proportion of the seize of their holdings which they would hold in common with the other land holders.
39. Under the Boon in villages where there was no land entered as shamilat, the common land in the vicinity of the village-site which was entered as Khalsa, was converted into shamilat deh and the villages concerned were given the same rights therein which they possess in their individuals holding.
40. Whether a person who is a grantee of Shamilat land under the boon, gets proprietary rights over the said land came under consideration before this Court in Salam Rather v. Mohd Gani, AIR 1964 J&K 46, the court held that the land holders have proprietary rights in Shamilat land in proportion to the size of their holdings on pro rata basis. The Court observed as under:
"... But the basic right that was granted by this boon was that the land holders in a particular Mahal would be entitled to have to share in the land declared as Shamilat pro rata their holding. That means they had proprietary rights in shamilat land in proportion to the size of their holdings, which they would hold in common with the other land holders. The Shamilat could be got partitioned and each individual land-holder get his share of the Shamilat land in proportion to the size of his Shamilat land in proportion to the size of his holding. The trial Court was not, therefore, correct in holding that all that could be transferred about Shamilat land was possessory right alone, but the right of ownership, though joint with others, can also be the subject of a Shamilat land".
41. Whether a person holding Shamilat land is entitled to any compensation in case such a land comes under acquisition, was considered by a Division Bench of this Court in State of Jammu & Kashmir v. Smt. Hamida Begum, AIR 1979 J&K 48, the Court observed:
"It is common knowledge that the rights and incident of Shamilat land in occupation of a person are the same as if he is the owner thereof. Had this been State Khalsa land, the position would have been different. The mere fact that Shamilat land was reserved for grazing purposes would not militate against the fact that the petitioner is the owner thereof and that she has remained in possession thereof before the samvat year 2003. Even in extreme cases where the Government grants land on certain conditions and the conditions are not enforced by the Government and the land is afterwards acquired under the Land Acquisition Act, the latter cannot refuse compensation to the possessor of the land. That is what has been observed in AIR 1968 SC 105. Then when compensation cannot be refused to a person in occupation of the land granted by the Government, which in other words means, that the land is State land, how can it be said that in the present case the petitioner is not entitled to compensation for the Shamilat land of which she is in de facto and de jure possession."
42. Following the view expressed by this Court in these authorities we hold that holder of Shamilat land (which in revenue parlance is known as Shamilat dafa 5) has got the same rights in respect of the land as in the proprietary land and if a portion of Shamilat land comes under acquisition, holder thereof is entitled to its compensation in the same manner as in the case of proprietary land. Argument of the learned counsel for the appellant on this court, therefore, cannot be accepted.
43. In the result, this appeal is partly allowed. Compensation awarded by the learned Single Judge in respect of 313 kanals and 4 marlas of land at the rate of Rs. 15,000/- shall stand, while as, the order relating to grant of interest is set aside.
44. Before concluding we may observe that the land in question in the present case is a big chunk consisting of 313 kanals and 4 marlas. Under the Big Landed Estates Abolition Act and the Agrarian Reforms Act a person cannot hold land more than the ceiling prescribed by these Acts. If that is so, how the respondents could take compensation for the land beyond such ceiling. We, however, leave it to the concerned authorities to look into this aspect and decide it on its own merits. We make this observation only to make it clear that the orders of the Court shall not be used to defeat the provisions of these Acts.
Order accordingly.